Drew Law Office pages

Avvo Profile Attorney Drew

Proposed New Rule on Hardship Waivers

USCIS Office of Public Engagement: I-601 Notice of Intent

U.S. Citizenship and Immigration Services sent this bulletin at 01/06/2012 10:32 AM EST

Dear Stakeholders-

U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Intent
in the Federal Register outlining a proposed change to its current
process for the filing and adjudication of waivers of inadmissibility
relating to unlawful presence.

The proposed process
would allow certain individuals seeking permanent residence through
their U.S. citizen immediate relatives to apply for waivers of
inadmissibility before leaving the U.S. for their interview at a U.S.
Embassy or Consulate overseas.

===============================================

~comment from Randall Drew

This proposed rule change is important and helps to solve a really difficult issue. People who do not have legal status in the USA but who do have US citizen or LPR families have been able to apply for visas if they leave the country to do so. However, for the past fifteen years or so leaving the country to apply for the visa (for most people) meant not being able to return to that family in the USA for ten years. The only way around the 10 year exclusion was to apply at the US Consulate for an extreme hardship waiver. That waiver is not a simple thing to obtain -- what an average American would think of as hardship -- the family losing their main source of income from the intending immigrant's job, separation of the husband and wife, parent and child -- that isn't always enough to get a waiver.

The second problem has been that even if you are eligible for the waiver -- it has historically taken 18-24 months to process the case overseas. So how many people do you suppose have been willing to quit their job in the USA, go back to their country while leaving their US citizen family behind to fend for themselves while waiting two years to find out if you might be allowed back in the USA or you might have to wait ten years? Would you risk it?

This rule doesn't make qualifying for the waiver any easier but it does allow people to apply before they leave the USA. If they can remain with their families for that 18-24 months and know they have a waiver in-hand -- then it makes sense to fill out the applications, pay the fines and fees and come back to the United States legally.